R v GJ

Case [2008] VSCA 222


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 113 of 2007

THE QUEEN

v

GJ

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JUDGES:

NETTLE, WEINBERG JJA and HARGRAVE AJA

WHERE HELD:

MELBOURNE

DATE OF HEARING:

27 October 2008

DATE OF JUDGMENT:

12 November 2008

MEDIUM NEUTRAL CITATION:

[2008] VSCA 222

1st Revision 13 November 2008

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Criminal law – Conviction – Rape – Whether judge erred in directions as to the elements of rape ­– Evidence – Consciousness of guilt – Lie – Whether judge erred in failing to give a Zoneff direction – Application refused – Dhanhoa v The Queen [2003] 217 CLR referred to.

Criminal law – Sentencing – Manifest excessiveness – Appellant sentenced to 12 years’ imprisonment with a non-parole period of nine years – Whether judge gave sufficient weight to youth and prospects of rehabilitation of appellant and of concurrency and totality principles – Whether judge erred in making sex offender registration order pursuant to s 11 of Sex Offenders Registration Act2004 – Appeal allowed – Appellant re-sentenced to a term of 10 years’ imprisonment with a non-parole period of seven years.

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APPEARANCES: Counsel Solicitors
For the Crown Mrs C M Quin Mr S Ward, Acting Solicitor for Public Prosecutions
For the Appellant Ms F L Dalziel Clarebrough Pica

NETTLE JA
WEINBERG JA
HARGRAVE AJA:

  1. On 5 February 2007 the applicant was arraigned before the County Court at Melbourne on a presentment preferring 13 counts of rape (counts 1, 4, 5, 8, 9, 10, 12, 13, 21, 22, 23, 24 and 25), seven counts of intentionally causing injury (counts 2, 3, 11, 14, 16, 18 and 20), two counts of false imprisonment (counts 6 and 15), one count of make threat to kill (count 7), one count of administering a substance to another (count 17) and one count of indecent assault (count 19).  He pleaded guilty to count 15 but not guilty to all other counts.

  1. After several days of trial, on 8 February 2005 the jury returned a verdict of not guilty by direction on four counts of rape (counts 4, 5, 13 and 22) and the one count of administering a substance to another (count 17).  The trial then continued to its conclusion and, after deliberating for a day, on 13 February 2007 the jury returned a verdict of guilty on seven of the counts of rape (counts 9, 10, 12, 21, 23, 24 and 25); four counts of intentionally causing injury (counts 11, 14, 16, 18); one count of indecent assault (count 19) and one count of false imprisonment to which the applicant had pleaded guilty (count 15), but acquitted the applicant of the remaining two counts of rape (counts 1 and 8), three counts of intentionally causing injury (counts 2 and 20), one count of false imprisonment (count 6) and one count of make threat to kill (count 7).

  1. Following a plea in mitigation of penalty, on 26 April 2007 the judge sentenced the applicant as follows:

    ·     On count 9 (rape by vaginal penetration…

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R v GJ [2008] VSCA 222
Case
[2008] VSCA 222
Decision Date

CaseChat Overview and Summary

The appellant, GJ, was convicted of raping a woman in Victoria. GJ appealed against his conviction and sentence. The appeal was heard in the Court of Appeal in Victoria. The appellant challenged his conviction on the grounds that the judge erred in the directions given to the jury regarding the elements of rape and by failing to give a direction in line with the decision in Zoneff v R. The appellant also challenged his sentence on the grounds that the judge did not give sufficient weight to the principles of concurrency and totality, the youth and prospects of rehabilitation of the appellant and that the judge erred in making a sex offender registration order. The court found that the judge did not err in the directions given to the jury but did find that the judge should have given a Zoneff direction. However, this did not affect the safety of the conviction. The court found that the sentence imposed was manifestly excessive and that the judge did not give sufficient weight to the principles of concurrency and totality, the youth and prospects of rehabilitation of the appellant. The court also found that the judge erred in making a sex offender registration order. The appeal was allowed and the appellant was re-sentenced to a term of 10 years’ imprisonment with a non-parole period of seven years.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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